Access to public records is 'deteriorating terribly'

Back in May, at the recommendation of Florida Gov. Ron DeSantis, the state legislature made a change to its public records laws, exempting the governor’s travel records. Not only would the governor no longer be required to make details about his upcoming plans public, but even his past travels wouldn’t be available for scrutiny.

“The sponsors of the bill said the exemption was needed for the governor’s protection, which may be reasonable for future plans,” says Barbara Petersen, co-founder and executive director of the Florida Center for Government Accountability. “But it’s hard to see what protection is provided by exempting old travel records, including who he was with and who was paying for the travel.”

This is something of an extreme case, but it’s representative of the steady erosion of public records laws in Florida and a number of states. “There has been a consistent move to conceal more and more records from the public,” says Megan Rhyne, executive director of the Virginia Coalition for Open Government. “Some states have done so at a different rate than others, but we see this in many of them.”

North Carolina’s budget bill, for example, recently included language that changes previous open records laws to exempt current and former legislators from any requirements to share documents they create while in office and to give lawmakers the power to decide whether a record should be made public, archived, destroyed or sold. As Brooks Fuller, director of the North Carolina Open Government Coalition, told NPR a few weeks ago, “They have every incentive to leave you in the dark if there's a record of something unflattering or that might not be politically advantageous to them. And my belief is that that's probably what most legislators are going to do.”

The ability of people to get records that are supposed to be made publicly available has been “deteriorating terribly,” according to David Cuillier, director of the Brechner Freedom of Information Project at the University of Florida. In fact, a nonprofit organization called MuckRock, which consults with people and organizations in their efforts to get public records, has found that about 10 years ago such efforts were successful about half the time. Today, that’s down to about 18%.

This isn’t just an issue for journalists who have historically been able to serve as watchdogs over government by making Freedom of Information Act requests to get the documents necessary to fully report an article. “Though journalists often use FOIA, the majority of requesters are not reporters,” says Michael Morisy, co-founder and chief executive officer of MuckRock. “In many places, they are commercial requesters, like businesses that need information in order to make informed proposals for procurement. Then there are think tanks and universities, and I’ve even been surprised at how often local elected officials in oversight positions are filing requests.”

Though most states have some version of open records or sunshine laws, they can easily deteriorate when exemptions are inserted.

This has been the case in Florida, which long had a reputation as one of the most open states in the country. Its first sunshine laws were enacted in 1909, one of the first such pieces of legislation in the country. That law has been chipped away with increasing speed since the mid-1990s, and today it has about 1,200 exemptions and at least a dozen more are added almost every year. Of course, some of the exemptions, like access to individuals’ Social Security numbers, make good sense, but many are far more troublesome, like those protecting the governor’s past travel records.

Other states and communities regularly expand their exemptions as well. In Virginia, for example, “we have two localities that have refused to release the names of their police officers in a salary database because at some time in the future the officers might be undercover agents,” says Rhyne. “We don’t have any issue with withholding the names of undercover officers, but only when they’ve actually been placed in that position.”

The only way to cut through exemptions and get the requested documents in most places is by going to court. “Your only recourse is to sue,” says Paul Wolf president of the New York Coalition for Open Government. But that can be expensive with attorney and court fees.

Even when public documents aren’t exempted, they are increasingly difficult to get. In some places, individuals or organizations that request documents are required to go through a formal Freedom of Information Act request, which can be complex and time consuming.

Consider this story from Buffalo, New York. Geoff Kelly, a local reporter, was investigating an appointment to the city’s sewer authority. But he was unable to get any satisfactory answers from the mayor’s spokesperson. According to his August article, “To find the identity of the authority’s media liaison, a reporter would need to file an FOI request.” 

Kelly, who writes for the Investigative Post, said in an e-mail to Route Fifty, “The spokesperson was Charles Riley, who is actually chief financial officer for the Buffalo Sewer Authority. My inquiry was directed to Oluwole McFoy, the authority's general manager. For whatever reason, Riley was deputized to respond to me—first by email, and then on a phone call. To his credit, during the phone call Riley seemed to acknowledge the absurdity of the response he'd been directed to give me.”

Even when FOIA requests have some legitimacy, one major challenge is that they can be expensive to process—too pricey in many cases for an individual, an advocacy group or a small community newspaper to afford. Though the days when places charged for copying fees are pretty much in the past, government offices still put on hefty price tags for the time it takes to find the requested documents and redact any material that should not legitimately be revealed to the public.

“In Tennessee, you have to pay at the hourly wage of the person, who is gathering the documents and when an attorney is used that raises the rate,” says Deborah Fisher, executive director of the Tennessee Coalition for Open Government. “That problem becomes even more of a hardship in small communities that have to contract out for lawyers, which means they’re paying even more.”

“Fees are the silent killer of public records transparency,” says Cuillier of the Brechner Freedom of Information Project. “A number of states are charging something like $300 an hour for search and redaction, and it effectively kills access to important information. I just heard from a reporter that the Las Vegas Police want to charge $320 an hour for police camera bodycam footage, which comes to $665,600 a year, and I’d like to meet a clerk who makes that much money.”

Even when documents haven’t been exempted and fees don’t stand in the way of procuring them, some entities put off turning over the documents for unreasonable periods of time.

“I think the delays interfere with a person getting records in a manner that would be helpful for them,” says Fisher. “Over and over and over again I hear this about Memphis. They send you a note every few weeks and say they’re working on it, and they won’t talk to you to explain the delays. There are organizations that are waiting for years. They are notorious for delaying things.”

At a time when 4 in 10 Americans say they don’t trust the government of the state in which they live to handle problems well, according to a mid-October Gallup poll, keeping public records from the public’s eye just makes matters worse. As governments grow more opaque, taxpayers are more likely to believe that they are hiding information from them—a notion that stands in the way of trust.